Chavez-Ramirez v. USA
Filing
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ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; ORDER DENYING CERTIFICATE OF APPEALABILITY; ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL re 1 - Signed by JUDGE SUSAN OKI MOL LWAY on 11/8/2016. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Susan Chavez-Ramirez shall be served by first class mail at the address of record on November 9, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SUSAN CHAVEZ-RAMIREZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
____________________________
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CIV. NO. 16-00456 SOM-KSC
CR. NO. 09-00050 SOM (01)
ORDER DENYING DEFENDANT’S
MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE; ORDER
DENYING CERTIFICATE OF
APPEALABILITY; ORDER DENYING
REQUEST FOR APPOINTMENT OF
COUNSEL
ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE;
ORDER DENYING CERTIFICATE OF APPEALABILITY;
ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL
I.
INTRODUCTION.
Defendant Susan Chavez-Ramirez was convicted of two
drug crimes and sentenced to concurrent terms of 158 months
imprisonment and 8 years of supervised release, as well as a $200
special assessment.
See Judgment ECF No. 177.
On October 16, 2012, the Ninth Circuit Court of Appeals
affirmed the Judgment in a Memorandum.
See ECF No. 189.
On August 11, 2016, nearly 4 years after the Ninth
Circuit’s decision, Chavez-Ramirez filed a motion under 28 U.S.C.
§ 2255, arguing that she should be resentenced based on Johnson
v. United States, 135 S. Ct. 2551 (2015), and Amendment 794,
which amends U.S.S.G. § 3B1.2.
The court denies the motion and
declines to issue a certificate of appealability.
denies her request for appointment of counsel.
The court also
II.
BACKGROUND INFORMATION
Chavez-Ramirez pled guilty without a plea agreement to
Counts 1 and 2 of the Indictment, which charged her with
conspiring to distribute and possess with intent to distribute
500 grams or more of a substance containing methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and
with possessing with intent to distribute 500 grams or more of a
substance containing methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A).
See ECF Nos. 15, 139.
She was
sentenced on January 23, 2012, to concurrent terms of 158 months
imprisonment and 8 years of supervised release, as well as a $200
special assessment.
January 25, 2012.
See ECF No. 176.
See ECF No. 177.
Judgment was entered on
See ECF Nos. 77, 79.
Chavez-Ramirez was not sentenced as a career offender, and she
did not ask for a minor role reduction pursuant to U.S.S.G.
§ 3B1.2.
See Transcript of Sentencing, ECF No. 185.
At the sentencing hearing, the court adopted the
Presentence Investigation Report, ECF No. 183.
3, ECF No. 185, PageID # 1190.
See Transcript at
The Presentence Investigation
Report indicated that Chavez-Ramirez had a Total Offense Level of
35 and a criminal history category of VI, giving her an Advisory
Guideline Range of 292 to 365 months imprisonment.
Id.
She was
subject to a 20-year mandatory minimum given the Government’s
filing of a Special Information under 21 U.S.C. § 851.
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The
Government moved for a downward departure pursuant to U.S.S.G.
§ 5K1.1 and 18 U.S.C. § 3553(e), arguing that Chavez-Ramirez had
provided substantial assistance in the investigation or
prosecution of another person.
172.
Id. at 4, PageID # 1191; ECF No.
The court granted that motion and sentenced Chavez-Ramirez
to concurrent terms of 158 months imprisonment and 8 years of
supervised release, as well as a $200 special assessment.
See
Sentencing Transcript at 14, 24, ECF No. 185, PageID # 1201,
1211.
On appeal, Chavez-Ramirez argued that this court had
erred in granting the downward departure without considering
factors unrelated to her substantial assistance.
See ECF No.
189, PageID # 1219.
Id.
III.
The Ninth Circuit affirmed.
ANALYSIS.
Under 28 U.S.C. § 2255, a court may grant relief to a
federal prisoner who challenges the imposition or length of his
or her incarceration on any of the following four grounds:
(1) that the sentence was imposed in violation of the
Constitution or laws of the United States; (2) that the court was
without jurisdiction to impose such sentence; (3) that the
sentence was in excess of the maximum authorized by law; or
(4) that the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a).
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A judge may dismiss a § 2255 petition if “it plainly
appears from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief.”
Rule 4(b), Section 2255 Rules.
A court need not hold
an evidentiary hearing if the allegations are “palpably
incredible” or “patently frivolous” or if the issues can be
conclusively decided on the basis of the evidence in the record.
See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also
United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998)
(noting that a “district court has discretion to deny an
evidentiary hearing on a § 2255 claim where the files and records
conclusively show that the movant is not entitled to relief”).
A.
Johnson Does Not Apply.
To the extent Chavez-Ramirez is asserting that she
should be resentenced under Johnson, the court denies that part
of the motion, as Johnson is simply inapplicable.
Johnson involved the definition in the Armed Career
Criminal Act of a “violent felony” that increased a defendant’s
punishment under 18 U.S.C. § 924(e) for crimes “involv[ing]
conduct that presents a serious potential risk of physical injury
to another.”
Johnson held that the indeterminate nature of that
clause “both denies fair notice to defendants and invites
arbitrary enforcement.”
Id.
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Chavez-Ramirez was not convicted or sentenced under any
provision referring to a crime “involv[ing] conduct that presents
a serious potential risk of physical injury to another” or using
similar language.
Johnson is thus inapplicable.
Instead, her
drug crimes violated 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
846.
Section 841(a)(1) makes it unlawful for any person to
knowingly and intentionally “(1) . . . manufacture, distribute,
or dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance; or (2) . . . create,
distribute, or dispense, or possess with intent to distribute or
dispense, a counterfeit substance.”
Section 846 makes it a crime
to conspire to commit an offense under § 841.
Section 841(b)(1)
sets a mandatory minimum sentence of 20 years for crimes
involving “50 grams or more of methamphetamine, its salts,
isomers, and salts of its isomers or 500 grams or more of a
mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its isomers”
when the defendant has a prior felony drug conviction.
Chavez-
Ramirez had previously been convicted of a felony drug offense,
as noted in the Special Information as to Prior Drug Conviction
of Defendant Pursuant to Title 21, United States Code, Section
851.
ECF No. 26.
Chavez-Ramirez’s Total Offense Level of 35 was based on
the large amount of methamphetamine involved.
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Her Criminal
History Category of VI was based on her extensive criminal
history, which included convictions for drug crimes, theft,
driving without a license, driving with a suspended license, and
driving under the influence of an intoxicant.
She had an
Advisory Guideline Range of 292 to 365 months of imprisonment.
As noted above, the court departed downward from that range
because of the Government’s substantial assistance motion.
Johnson is simply inapplicable when a sentence did not rely on
any definition of “violence” or “violent.”
B.
Chavez-Ramirez Is Not Entitled to Relief Under
Amendment 794.
Chavez-Ramirez seeks relief under Amendment 794, which
amended U.S.S.G. § 3B1.2.
Amendment 794 changed the language of
the commentary to § 3B1.2 to allow for the broader and more
uniform application of the mitigating role sentencing factor.
The Commentary now states, “a defendant who does not have a
proprietary interest in the criminal activity and who is simply
being paid to perform certain tasks should be considered for an
adjustment under this guideline.”
Chavez-Ramirez argues that she
was only a drug mule and that, under United States v. QuinteroLeyva, 823 F.3d 519 (9th Cir. 2016), decided May 17, 2016,
Amendment 794 should be applied retroactively.
The Government argues that Chavez-Ramirez procedurally
defaulted on her Amendment 794 argument under United States v.
Frady, 456 U.S. 152 (1982), because the argument was not raised
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earlier and she shows neither cause nor prejudice.
provides:
Frady
“[T]o obtain collateral relief based on trial errors
to which no contemporaneous objection was made, a convicted
defendant must show both (1) ‘cause’ excusing his double
procedural default, and (2) ‘actual prejudice’ resulting from the
errors of which he complains.”
Id.; accord Davis v. United
States, 411 U.S. 233, 242 (1973).
To show “actual prejudice,” a
§ 2255 petitioner “must shoulder the burden of showing, not
merely that the errors at [her] trial created a possibility of
prejudice, but that they worked to [her] actual and substantial
disadvantage, infecting [her] entire trial with error of
constitutional dimensions.”
Frady, 456 U.S. at 170.
Even assuming that, given the absence of Amendment 794
at the time of sentencing, Chavez-Ramirez had “cause” for not
having raised the argument at the time she was sentenced, ChavezRamirez shows no prejudice, as Amendment 794 is not applicable to
her.
Quintero-Leyva only made Amendment 794 retroactive to
direct appeals, not to motions under § 2255.
See Seferos v.
United States, 2016 WL 6405810, *2 (D. Idaho Oct. 27, 2016).
Nor
did the United States Sentencing Commission make Amendment 794
retroactive to all cases.
See U.S.S.G. § 1B1.10(d) (2016)
(listing retroactive guideline amendments).
Chavez-Ramirez
therefore is not entitled to relief on her Amendment 794 claim.
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Chavez-Ramirez cannot succeed even if this court views
her motion as brought under 18 U.S.C. § 3582.
The case she
relies on notes that Amendment 794 was intended to be a
“clarifying amendment.”
Quintero-Leyva, 823 F.3d at 523.
Courts
have discretion to reduce a previously imposed term of
imprisonment when the United States Sentencing Commission reduces
the sentencing range, and the reduction is “consistent with
applicable policy statements issued by the Sentencing
Commission.”
18 U.S.C. § 3582(c)(2).
Section 1B1.10(a)(2) of
the 2016 Sentencing Guidelines states that a reduction of a
defendant’s term of imprisonment is not consistent with “policy
statements” when it is not specifically listed in U.S.S.G.
§ 1B1.10(d).
Accordingly, Amendment 794 cannot provide the basis
for a resentencing under § 3582, as Amendment 794 is not listed
in § 1B1.10(d).
See United States v. Cueto, 9 F.3d 1438, 1441
(9th Cir. 1993) (refusing to apply amended § 3E1.1 retroactively
because it was not listed in § 1B1.10(d)).
IV.
THE COURT DECLINES TO ISSUE A CERTIFICATE OF
APPEALABILITY.
The court declines to grant Chavez-Ramirez a
certificate of appealability.
An appeal may not be taken to the
court of appeals from a final order in a § 2255 proceeding
“[u]nless a circuit justice or judge issues a certificate of
appealability.”
28 U.S.C. § 2253(c)(1)(B).
The court shall
issue a certificate of appealability “only if the applicant has
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made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
When a district court denies a
§ 2255 petition on the merits, a petitioner, to satisfy the
requirements of section 2253(c)(2), “must demonstrate that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.”
McDaniel, 529 U.S. 473, 484 (2000).
Slack v.
When, however,
the district court denies a habeas petition
on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue
when the prisoner shows . . . that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial
of a constitutional right and that jurists of
reason would find it debatable whether the
district court was correct in its procedural
ruling.
Id.
No reasonable jurist would find debatable this court’s
conclusion that Chavez-Ramirez is not entitled to relief in light
of Amendment 794.
She shows no prejudice arising from an
inapplicable amendment.
Nor would any reasonable jurist debate
this court’s assessment of the merits of Chavez-Ramirez’s
remaining constitutional claims.
to this case.
Johnson is clearly inapplicable
Accordingly, the court declines to issue a
certificate of appealability.
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III.
CONCLUSION
The court denies Chavez-Ramirez’s request to be
resentenced under § 2255.
The court also declines to issue her a
certificate of appealability and, under the circumstances, denies
her request to appoint counsel.
IT IS SO ORDERED.
Dated:
Honolulu, Hawaii, November 8, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Chavez-Ramirez v. United States of America; CIV. NO. 16-00456 SOM-KSC; CR. NO.
09-00050 SOM; ORDER DENYING DEFENDANT’S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE; ORDER DENYING CERTIFICATE OF
APPEALABILITY; ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL
10
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